Harris et Al v Guyana and Trinidad Mutual Fire Insurance Company Ltd
| Jurisdiction | Guyana |
| Judge | Khan, J. |
| Judgment Date | 26 June 1971 |
| Neutral Citation | GY 1971 HC 25 |
| Docket Number | 510 of 1968 |
| Court | High Court (Guyana) |
| Date | 26 June 1971 |
High Court
Khan, J.
510 of 1968
M.G. Fitzpatrick for plaintiffs.
C.A.F. Hughes for defendants
Contract - Insurance — Motor Vehicles — Insurable Interest
This action raises questions of general interest and considerable importance in the Law of Motor Car Insurance. It appears that some of the issues raised have to be determined for the first time.
On the 6th January, 1967, at about 6 p.m. the three plaintiffs and Jean Harris were travelling as passengers in motor car H.R. 713 driven by Michael Murray along the Fast Bank Public Road. The cur struck a bridge and ran into a trench. The three plaintiffs suffered injuries which were not serious, but Jean Harris suffered severe Injuries from which she died. At the time of the accident there was a policy of Insurance with the Defendants in respect of car HR 713 in accordance with the provisions of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Chapter 281 of the Laws of Guyana.
The No. 1 plaintiff, Maisie Harris obtained Letters of Administration of the estate of the deceased Jean Harris — and subsequently instituted Action No. 1137 of 1967 in the High Court against the driver, Michael Murray for damages for loss of expectation of life on behalf of the said deceased estate. On the 3rd of November, 1967, the action was heard by Fung-A-Fat, J: and judgment entered for the plaintiff against the said driver Michael Murray for $1,710.000 with taxed costs in the sum of $830.50.
Nos. 1, 2 and 3 plaintiffs also instituted action No. 1140 of 1967 in the high Court against the said driver Michael Murray for damages for injuries sustained by them. This action was also heard by Fung-A.-Fat, J; on the 3rd November, 1967, and judgment was entered for the three plaintiffs for $442.00 as damages with costs fixed at $275.00.
The above actions were filed on the 15th May, 1967, and were served on the defendants on the 16th May, 1967. The defendants took no part in the aforesaid actions. The plaintiffs requested payment of the judgments obtained in the two actions referred to above from the defendants but to no avail.
The plaintiffs now claim the amount owing under the aforementioned judgments from the defendants by virtue of and under Section 8 of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Chapter 281, of the Laws of Guyana.
Section 8(1) of Chapter 281 provides as follows;
“If after a certificate of Insurance has been issued under subsection (4) of section 4 of this Ordinance, to the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under paragraph (b) of subsection (1) of section 4 of this Ordinance, (being a liability covered by the terms of the policy) is obtained against any person insured by the policy, then, notwithstanding that the authorised insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the authorised insurer shall, subject to the provisions of this section, and subject to any limitations on the total amount payable under the policy in pursuance of the fourth, fifth and sixth provisos to paragraph (b) of subsection (1) of section 4 of this Ordinance pay to the persons entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any amount payable in respect of costs any sum payable in respect on that sum by virtue of any enactment relating to interest on judgments.”
The defendants in their affidavit of defence do not admit that the car H.R. 713 was at all material times insured with them. By paragraph 4 of their affidavit of defence, the defendants state that the actions in question were brought against Frederick Smartt as the registered owner of motor car H.R. 713 and Michael Murray as driver of the said car and servant or agent of Frederick Smartt at the time of the accident and that the judgments in the said actions were obtained against Michael Murray only. The defendants say that there was no valid policy of Insurance in force in relation to the user of the motor car by either Frederick Smartt or Michael Murray at the time of the accident, and further, no certificate of Insurance in the prescribed form or at all was ever issued by the defendants to the said Frederick Smartt, the registered owner of the said motor car.
The defendants further contend that the statement of Claim discloses no cause of action against them. Defendants deny that the amounts owing by Michael Murray under the Judgment obtained by the plaintiffs against him are due by them to the plaintiffs under section 8 of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Chapter 281, or at all.
The circumstances lending up to the present dispute with respect to the existence of a valid policy of Insurance are as follows:-
Sometime before November, 1966, Frederick Smartt, the registered owner of Motor Car HR 713 hired same to Michael Murray at a daily rental of $8.00 per day. Murray operated the car as a hire-car, paid the rental of $8.00 per day daily to Smartt. During November, 1966, Smartt left Guyana for overseas, leaving David Caesar — a physiotherapist as his agent to collect the rental from Murray. before Smartt left he handed over to Caesar the licence, certificate of fitness, and Insurance renewal receipt of the car. He also took the driver, Michael Murray to Caesar and Instructed Murray to pay hire of $8.00 per day to Caesar on his (Smartt's) behalf. Murray had exclusive possession of the car and Caesar had the right of re-possessing the car in the event of non-payment of the daily hire. The car was insured with the Guyana National Insurance Company to expire in December, 1966. By that time the Guyana National Insurance Company ceased operating motor insurance. Caesar went to the defendant's company and applied for Insurance coverage on the 17th December, 1966, and eventually obtained n policy of Insurance (Full Third Party Comprehensive).
In answer to question 6 of the Proposal Form Viz; “is the proposer the owner of the vehicle, and is it registered in his name”, it is recorded “Yes” when in fact the registered owner was Frederick Smartt. Michael Murray continued to drive and operate the car H.R 713 on the terms agreed on with Smartt and paid Caesar the $8.00 per day.
In his evidence before me, Caesar described the arrangement thus “After Smartt left Michael Murray drove the car with my permission. I collected from Murray $8.00 per day for hire of the said car HR 713. Murray had sole possession of the car. I was responsible for it and could have taken it away if I wished to. This was all word of mouth.”
The arrangement continued well up to the 5th of January, 1967 when the registered owner Frederick Smartt returned to Guyana. On the said afternoon of the 5th January, 1967, Caesar handed back all the relevant papers of the car H.R. 713 to Smartt. In his own words he stated inter alia “Mr. Smartt the owner of the car came back to the Country. I saw him on the 5th January, 1967, and I handed over control of the car on the 5 th January, 1967, to Smartt.”
Under cross-examination: Caesar reiterated his position in these words:- “My connection with Murray ceased on the 5th January, 1967, after I handed over my responsibility to Smartt. I collected no money after the 5th January, 1967, now say I had nothing to do with Murray on the 6th January, 1967, He was not under my control on the 6th January, 1967, I had not to dive him permission on the 6th January, 1967…”
On that day, 6th January, 1967, at about 6.00 p.m. Michael Murray was still the driver of the car HR 713 and was involved in an accident in which the plaintiffs suffered injuries and Jean Harris died, as stated earlier in the first paragraph of this judgment.
On the 9th January, 1967, both Smartt and Caesar went to the defendant's Office to effect a transfer of the Insurance from Caesar to Smartt. They filled up the necessary application form for transfer of the policy (Vide Ex. “C”) and waited for approval. The transfer was never approved but by a letter dated 11th March, 1967, the defendants wrote Ceasar as follows:-
11 th March, 67
David Ceasar,
40, D'Urban Street
Werk-en-Rust,
Dear Sir,
Policy No. M 29723 – Car No. HR 713
Take notice that as provided for under Condition 4 of the General Condition of the above numbered Policy covering the vehicle No. HR 713, I have been instructed to cancel the Policy, and, consequently, this cancellation is to take immediate effect.
Under the terms of the Motor Vehicles Insurance (Third Party Risks) Ordinance, 1937, you are required to surrender the current certificate of Insurance now in your possession within seven days from the date hereof, namely, 18 th March, 1967, failing which you will be committing an offence.
If, therefore, the certificate of Insurance referred to above and at the same time, the policy of Insurance are surrendered to me the unexpired portion of the premium, namely, $35.85 will be refunded to you.
Yours faithfully,
??
Assist. Secretary
On the 6 th June, 1967, Mr. Lampkin (Solicitor) on behalf of the registered owner Frederick Smartt wrote the Defendants as follows:-
VIBERT LAMPKIN (LLB. LOND.)
“CHAMBERS”
SOLICITOR.
10 Coral Street,
Dial 4665
Georgetown, Demerara
GUYANA.
6 th June, 1967
The Secretary,
Guyana & T'dad Mutual Fire Ins. Co. Ltd.
Robb Street
GEORGETOWN.
Dear Sir,
Re: Maisie Harris v. Frederick Smartt & Michael Murray 1137/1967 .
Maisie Harris et al v. Frederick Smartt & Michael Murray 1140/1967 .
I have been consulted by Mr. Frederick Smartt with reference to the above actions.
My client instructs me that he was the registered owner of motor car No. HR 713 which was involved in an accident on 6th January, 1967, with one Jean Harris who...
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